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Altered quotes: holding the line on the First Amendment.

Altered quotes

Holding the line on the First Amendment

Working editors and journalists have long been at the forefront of championing activism by government and the courts in expanding First Amendment rights. Particularly, where the interests of a free press are concerned, editors have been outspoken in favor of change and reform.

However, in recent years a gradual change in the rallying cry has taken place. Rather than push for even more reform, efforts of editors and the lawyers who speak for them in court are increasingly being directed to maintain just the status quo where First Amendment protections are concerned.

The reasons are not hard to understand. The Supreme Court, which for a quarter of a century until the late 1980s had been a force for enlarging First Amendment protections, in recent years has signaled an unmistakable retrenchment. Recognizing this change, editors and their lawyers are now being forced to pursue a Supreme Court strategy devoted to holding on to what protections they now enjoy.

A turning point?

Nowhere is this more apparent than in one of the major cases now before the Supreme Court. In Masson v. New Yorker Magazine, editors and their lawyers acknowledge that the Supreme Court could wreak significant cutbacks in press freedoms. The Masson case, involving the use of altered quotations, poses a threat to the New York Times v. Sullivan protections in libel suits. This case, among others on the Court's docket, marks 1991 as a pivotal year in measuring the erosion of constitutional protections for the press.

The facts of the case raise some ethical considerations. Author Janet Malcolm conducted 40 hours of taped interviews over a period of seven months with Freudian pyschoanalyst Jeffrey Masson. The interviews appeared in the New Yorker and in book form. On at least nine occasions, the author did not quote Masson directly. Instead, she put words in quotation marks that summed up, or characterized, what Masson had said on tape.

For example, although Masson did not call himself an "intellectual gigolo" on tape, Malcolm put those words in quotes, attributed to him. Additionally, Masson did not exactly accuse Freud of "moral cowardice," but said as much. Malcolm attributed those words to Masson, and put them in quotes.

Masson sued Malcolm, the New Yorker and others, claiming that the fabricated quotes made him appear unscholarly, irresponsible, vain, dishonest and immoral.

A quote is more than punctuation

Masson's suit was dismissed by the trial court and the U.S. Court of Appeals for the 9th Circuit. Those courts decided that Masson had not proved Janet Malcolm had written those quotes with actual malice. Those courts took the kind of forgiving, laissez-faire approach to libel that had characterized many Supreme Court decisions in the Warren and Burger years.

The Court of Appeals said that the false quotes were reasonable interpretations of ambiguous statements actually made by Masson, or words that are substantively consistent with unambiguous statements of Masson. Thus, there was no actual malice, and the case was dismissed.

The press defendants and the media's amicus brief understandably have sought to convince the Court that altered quotes do not automatically translate into actual malice.

The Supreme Court will decide whether Masson's case goes to trial or remains dismissed. If the performance of the present Court in very recent years is any guide, there exists a potential for an exacting, narrow and mechanical parsing of the article, comparing the tapes and the text.

This case represents an invitation to the Court to shrink the concept of actual malice, thus making it more difficult for the press to win future libel suits brought by public figures and public officials.

If the leading constitutional indicators, however, are wrong, the Court might surprise many by sending the case back to the trial court to develop a fuller record before the Court finally passes on the question of actual malice.

A strategic response

As pivotal as 1991 may be in the erosion of press freedoms based on Supreme Court opinions, and as understandable as the strategy of editors may be in espousing a conservative hold-the-line approach in the Supreme Court, it should be noted that the Supreme Court is not the exclusive fount for all protections of the press. Indeed, a twofold strategy is now emerging.

First, some news organizations are finding that the free press guarantees in their state constitutions, interpreted by state supreme courts more sympathetic with the philosophy of the Warren and Burger courts, may provide more protection than the First Amendment interpreted by a Rehnquist Court. It may be possible to create state constitutional protections against libel suits as broad as those in New York Times v. Sullivan.

Second, there is the prospect of seeking remedial legislation at the state or congressional levels if the Supreme Court's decisions this year make it imperative.

In the realm of press freedoms, the bicentennial of the ratification of the Bill of Rights promises to be a critical year.

Richard Winfield is a partner in the law firm of Rogers & Wells in New York City and chairs the Media Law Committee of the New York State Bar Association.
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Author:Winfield, Richard N.
Publication:Editor & Publisher
Date:Apr 6, 1991
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